Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise
thereof...
– United States Constitution, 1st Amendment.

The First Amendment has two
complementary objectives barring government preference of a religion as well as
protecting the individual's right to practice a particular religion without
government interference. As James Skillen notes, every argument for fundamental
education reform encounters the claim that an open pluralistic system violates
"the first amendment's establishment clause because public monies will end up in
the hands of religious schools."
[49]

In reality, choice places
funds in the hands of parents who elect either public or private, religious or
non-religious schools. In Detroit, most parents who select private schools elect
sectarian ones primarily because they offer strong leadership, educational
achievement and safety and availability. The school's religious mission is not
the primary selection factor.

Single common public school
systems such as Detroit's Public System owe much of their philosophy to Thomas
Jefferson, Horace Mann, and other educational reformers. Jefferson believed that
rational empiricism and enlightened moralism should be substituted for
explicitly Christian doctrines which at the time were guiding many families,
schools, and churches.
[50] The Jeffersonian approach, a secularized form of
Protestantism, became a major tenet of faith of school reformers as the United
States moved from a system of private education to public education.

Educational reformers led
by people like Horace Mann held a hidden agenda which included a diverse range
of goals which were to be achieved by politicizing the educational system,
encouraging the adoption of compulsory public education, and shifting
responsibility for education from the family to the state.
[51] From the 1840's
through the next 100 years the common public school movement sought to
institutionalize a system of government-established, government-funded, and
government-run schools acceptable to the majority.
[52] This trend was
accelerated by the influx of largely Catholic immigrants to Boston and New York
City. "When Catholics began to appeal for public support of their schools on the
same basis" as Protestant schools, there was a reaction.
[53]

The largely Protestant
majority in each city reacted to the pluralizing threat by making the argument
that their own schools were common and "non-sectarian" but that Catholic schools
were parochial and "sectarian". They engineered the circumstances politically to
give public backing and funding to the so-called "non­sectarian common
schools."
[54]

Lower income groups, in
both poor and rural areas, fought compulsory schooling as a limitation of
parental rights. The Irish boycotted the public schools which displaced Catholic
private educational institutions.
[55]

Public schools
reflecting the evolving distinction between church and state saw the removal of
religious instruction and became more secular in character.
[56] Consistent with
their agenda, uniformity of thought was encouraged by school reformers. For
instance, Mann, an acknowledged leader in the one common school movement,
accepted racial segregation in education and admonished educators who spoke out
publicly on that issue.
[57] Democracy legitimized incursions of the state into
family affairs based on the utilitarian view that such incursions reflected
majority rule. The rights of the family, particularly on religion, were to be
sacrificed for the good of the community.
[58] Such a single common system which
implicitly and explicitly promotes values inconsistent with the United States',
Michigan's, and Detroit's pluralism cannot be intelligently squared with the
First Amendment's goal of protecting the individual's right to practice a
particular religion, free from governmental interference. In essence, the
Jeffersonian dogma as it evolved discriminates in favor of one dogma at the
expense of literally hundreds of opposing dogmas.

Moreover, many special interest lobbyists critical of choice are unwilling to
accept the premise that the government should be simply neutral on matters of
religion. They go further and throw their "weight on the side of those who
believe that our society as a whole should be a purely secular one."
[59]To the contrary, we believe, consistent with
the diversity of views in Detroit and beyond, "nothing in the first amendment or
in the cases interpreting it requires such an extreme approach"... (Justice
William Rehnquist, U.S. Supreme Court). [60]

On
the other hand, by the 1930's and 1940's, the ruling Jeffersonian hegemony
(modified by the religious secular distinction and John Dewey's pragmatism) with
its discrimination against non-government schools became the unquestioned
starting point for citizens and justices alike.
[61]

While
a review of the entire historical and constitutional record is beyond the scope
of our book, it is important to look at a few relatively recent cases.

In
Board of Education v. Allen, 392 U.S. 236 (1968), the
United States Supreme Court held that a state of New York law requiring local
public school authorities to lend textbooks free of charge to all students in
grades seven through twelve including private school student was not in conflict
with either the First Amendment or 14th Amendment to the U.S. Constitution. The
court looked at earlier cases and said the test is whether the purpose and the
primary effect of the statute is to advance or inhibit religion. Here, the
statute authorized the loan of secular books. Accordingly, it did not advance or
inhibit religion. Therefore, the court found the provision of books acceptable.

Another significant case is Lemon v. Kurtzman, 403
U.S. 602,
(1971). The court was asked to review a Pennsylvania and a Rhode Island statute
providing state assistance to church-related elementary and secondary schools.
Pennsylva­nia provided financial support to non-public schools by way of
reimbursement of instructional cost related to specified secular subjects. Rhode
Island paid a 15% salary supplement to non-public elementary school teachers. In Lemon,
the court stated a
three part test to determine whether a program violates the establishment clause
of the lst amendment:

The statute must advance a secular purpose.

Its principal or primary effect must be one that neither advances nor
inhibits religion.

It must not foster "an excessive government entanglement with religion."

The
court found that both programs had a secular legislative purpose and did not
advance or have the primary intent of advancing religion. However the court did
conclude that the programs involved excessive entanglements between gov­ernment
and religion.

On
the other hand in Tilton v. Richardson, 403 U.S. G72, (1971), the Supreme
Court upheld Federal construction grants to religious institutions for buildings
used exclusively for secular purposes. The court dismissed the claim that every
form of financial aid to a church-related activity violates the religion clause.
Instead, it asked, does the legislative program have the principal or primary
effect of advancing a religion? The court found that grants to colleges and
universities did not have the primary effect of advancing religion.

Turning to the excessive entanglements questions, the court found significant
differences between church-related elementary and secondary schools and
church-related universities and colleges. College students, it is claimed, are
"less impressionable and less susceptible to religious indoctrination."
Consequently, the court held that while the four institutions in question were
governed by Catholic religious orders and both the faculty and student bodies at
each were predominantly Catholic, their mission was a secular one: provide
students with a higher education. Accordingly, the court found the entanglement
between church and state insufficient to bar government assistance.

In Mueller v. Allen, 103 S. Ct. 3062 (1983),
the Supreme Court upheld a Minnesota program which allows a deduction against
income for state income tax purposes. Tuition, textbooks and transportation
expenses are deductible for both secondary and elementary schools, either
private (including sectarian) or public. The court held that the education had a
secular purpose of "ensuring that the state citizenry is well educated."
Moreover, the court held that the state had a strong public interest in ensuring
the survival of both religious and non-religious private schools because they:

Relieve the public schools of educating a certain percentage of the
state's population.

Moreover, the court found
that the primary effect of the Minnesota program was not the advancement of
religion.

Two other cases are of
interest. In Bowen v. Kendrick, 108 S.Ct. 25(2 (1985), the Supreme Court
allowed Federal monies to be used for a church-run social welfare program.
Additionally, the Supreme Court, in Witters v. Washington Dept. of Services
for the Blind 474 U.S. 481 (1956), held that the state may use
rehabilitation funds for a blind person's seminary training.

Based on the foregoing
cases, a system of choice, financed through vouchers or tax credits, would not
violate the First Amendment, would increase the supply of good schools, reduce
cost thereby reducing financial pressure on Michigan's overburdened taxpayers,
as well as increase the educational performance of students from poor and
low-income and middle-income families, and ensure diversity and pluralism.

First, a voucher or tax
credit system advances a secular purpose. The principal objective of tax credits
or vouchers is the use of private schools to promote public values.

Competition improves educational achievement at lower cost. As Sugarman points out, "there is reason to fear
that choice limited to public schools will shield such schools from the
competitive pressures needed to force their own improvement."
[63] Without
private competition, lousy public schools will not be allowed to go bankrupt,
poor teachers will be allowed to keep their jobs.

Values such as pluralism and
diversity are likely to be encouraged. The single common public school system fails to
reflect tolerance of differences. Instead, a single ideological agenda is
encouraged. In our view, "government should treat all its citizens evenhandedly
and without discrimination. There is no question that justice demands it."
[64]
The requisite evenhandedness and non-discrimina­tion cannot be achieved under
our present educational system.

In many urban areas, private
schools are the only practical source of racially integrated education for
minority children.
[65]

Choice improves the economic prospects of minorities without coercion. As mentioned previously, the
achievement gap between black and white students narrows considerably in
Catholic and other private schools while in public schools this gap widens. This
is extremely important when one considers that at least one third of black
Americans subsist below the poverty line.

In light of these secular
purposes which are advanced by choice, it seems clear that the first prong of
the Lemon establishment of religion test is met.

Second, neither the
principal purpose nor the primary effect of choice will be to advance religion.
This view is strengthened by virtue of the fact that the funds go to parents who
select a school, public or private. Consistent with Mueller, a system of tax credits or
vouchers made available to the parent, irrespective of whether the benefit is
used at a public or private school, is no different from other government
entitlement programs such as social security or rehabilitation funding. To
benefit from social security, the recipient is not limited to non-religious or
secular uses of funds, as the purpose of such a program is to supplement
retirement income. Similarly, a system of open choice has the primary purpose of
improving educational outcomes by providing minimum education income.

Turning to the third issue,
excessive entanglements, a market system of education which provides funds to
parents of school children who expend the funds at private or public schools
does not lead to excessive entanglements, consistent with Tilton. In Tilton, the Supreme Court held that
a system of grants to church-related universities passed constitutional muster.
Part of that decision, however, was premised on the distinction between
impressionable school children and less impressionable college students. The
court found the level of entanglements insufficient where the mission of the
institution was a secular one. In our view, this distinction between elementary,
secondary and university education is tenuous at best. Moreover, the evidence in
our survey suggests that the primary reason Detroit area parents send their
children to Catholic and Lutheran Schools is very much like the reason college
students go to church-related universities – to get a good education. The
majority of students at Catholic schools in Detroit are non-Catholic and come
from non-Catholic homes. Neither students nor the parents are required to
convert. Accordingly, a publicly-financed program of choice is consistent with
Lemon as explicated by Tilton.

In sum, a market-based
system of individual choice advances public values and does not have the primary
effect of advancing religion, nor does it involve excessive government
entanglements with religion. Accordingly, such a plan should pass constitutional
muster, especially in light of recent changes in the makeup of the Supreme
Court. Led by Justice Sandra Day O'Connor, the court seems more willing to allow
government accommodation of religious beliefs.
[60] Moreover, such a system has
the advantage of preventing the educational staff from attempting to mold all
students to the view of the dominant group while preventing the emergence of
individual values, likes, desires, and purposes. A market-based system of choice
neutrally allows the individual to flourish within a pluralistic and diverse
culture. Parents have the opportunity to choose the values and beliefs to which
their children are exposed. Competition and choice encourage freedom of expression. Public
school monopolies suppress it.

As Gwartney and Wagner note
in their important book, PublicChoice and Constitutional Economics, the task of government
consistent with the Constitution is to promote the security of individual rights
and provide those services that people cannot provide for themselves.
Accordingly, in a system based on mutual
agreement, behavior (by government) that oppresses some for the benefit of
others is pathological.
[67] Maintenance of public school monopolies in Detroit
and beyond allows the poor to be oppressed for the benefit of the bureaucracy. A
market-based system of education ends this oppression. Choice is not only
constitutional; it promotes individual rights as well.

Moreover, tax credits and vouchers provide aid to parents without state
discrimination. Where government treats competing activities that are secular
the same way it treats religious activities, it will create neither incentives
nor disincentives to engage in religious activities.
[68] In our view, tax
credits and vouchers move us towards the goal of neutrality. Accordingly, such a
program should be embraced.

Any
discussion of educational choice in Michigan would be incomplete without calling
attention to Article VIII of the Constitution of Michigan. Among other things,
this section precludes the provision of public monies for non-public schools.
Accordingly, any serious attempt to reform education in Michigan requires that
proponents of choice consider amending, changing or abolishing this section
which prohibits payments, credits, tax benefits, deductions, and vouchers for
parents who exercise their choice to demand better schools for their children.
This provision was drafted in large part by the protectors of the public school
monopoly, teacher unions.

To be
sure, changing the state constitution will not be easy. It will require
committed individuals and groups. The children of Detroit and Michigan demand no
less.